State v. Kevin Burns ( 1997 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
FEBRUARY 1997 SESSION
FILED
July 25, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. NO. 02C01-9605-CR-00170
Appellee, )
) SHELBY COUNTY
VS. )
) HON. JOSEPH B. BROWN, JR.,
KEVIN B. BURNS, ) JUDGE
)
Appellant. ) (First-degree murder death penalty;
) attempted felony murder)
FOR THE APPELLANT: FOR THE APPELLEE:
GLENN I. WRIGHT JOHN KNOX WALKUP
200 Jefferson Ave. Attorney General & Reporter
Suite 800
Memphis, TN 38103 DARIAN B. TAYLOR
Asst. Attorney General
WILLIAM L. JOHNSON 450 James Robertson Pkwy.
50 N. Front St. Nashville, TN 37243-0493
Suite 1150
Memphis, TN 38103 JOHN W. PIEROTTI
District Attorney General
THOMAS D. HENDERSON
-and-
JOHN WHEELER CAMPBELL
Asst. District Attorneys General
201 Poplar Ave.
Memphis, TN 38103
OPINION FILED:____________________
CONVICTIONS FOR FIRST-DEGREE MURDER AND DEATH PENALTY
AFFIRMED; CONVICTIONS FOR ATTEMPTED FELONY MURDER REVERSED
AND REMANDED
JOHN H. PEAY,
Judge
OPINION
The defendant was indicted on two counts of murder in the perpetration of
a robbery (felony murder), two counts of premeditated murder, two counts of attempted
first-degree murder during the perpetration of a robbery (attempted felony murder) and
two counts of attempted premeditated first-degree murder. A jury convicted him of two
counts of felony murder and two counts of attempted felony murder. After a hearing, the
jury sentenced the defendant to death for one of the murders and to life imprisonment
for the other murder. He was sentenced to twenty-five years for each of the attempted
felony murders. In this appeal as of right, he raises the following issues:
I. The sufficiency of the convicting evidence;
II. The trial court’s refusal to suppress his statement;
III. The trial court’s instruction to the jury on flight;
IV. The validity of his convictions for attempted felony murder;
V. The trial court’s failure to grant a mistrial upon sobbing in the
courtroom;
VI. The admissibility of a crime scene photograph;
VII. The trial court’s responses to questions from the jury during
its deliberations;
VIII. The sufficiency of the evidence in support of the death
penalty;
IX. Whether the death penalty was properly imposed in light of
the defendant’s role in the crime;
X. Whether the victims’ mothers were properly permitted to testify
during the sentencing hearing as to the impact of the murders;
and
XI. The constitutionality of Tennessee’s death penalty statutes.
Following our review of the record in this matter, we affirm the defendant’s first-degree
murder convictions and sentences, reverse and dismiss his convictions for attempted
felony murder, and remand this matter for retrial of two counts of attempted premeditated
2
first-degree murder.
FACTS
The proof at trial established that on April 20, 1992, at approximately 3:15
in the afternoon, Eric Thomas, Damond Dawson, Tommie Blackman and Tracey Johnson
gathered at Dawson’s house in a residential neighborhood in East Memphis. The four
men ranged in age from sixteen to twenty-one years old. They sat in Dawson’s sedan
while it was parked in his driveway, the front of the car facing and perpendicular to the
street. Dawson sat in the driver’s seat, Johnson in the front passenger seat, Thomas
behind Dawson in the back seat and Blackman in the back seat behind Johnson. While
they sat there, they smoked some marijuana and drank some gin. Johnson’s mother
testified that she had seen her son wearing a jewelry chain that morning.
Thomas testified that, five or ten minutes after they had been in the car,
Carlito Adams and another male walked up to its passenger side. The other male pulled
out a pistol. Carlito Adams exchanged some words with Blackman and told him to get
out of the car. Blackman initially refused, then got out of the car and began running.
Thomas testified that Carlito Adams had then said, “Get him.” At that point, according
to Thomas, three or four more men “came from around the bushes and shot at
[Blackman] about six or seven times.” On cross-examination, however, Thomas stated
that he had seen only one person actually fire at Blackman as he ran away.
Thomas testified that he, Dawson and Johnson had remained in the car
while the men then surrounded it, pointed pistols at them and robbed them, taking money
from him and jewelry from Johnson and Dawson. After taking these items, according to
Thomas, the men had begun shooting at them, hitting him in the chest and stomach.
Thomas testified that they had also been shooting Dawson and Johnson and he had
decided to “lay down and try to play dead.” At some point, he testified, “they ran off, and
3
I thought that was it. And then I heard some footsteps coming back, so I laid back there
again, and somebody came back and started shooting back again.” On this return visit,
Thomas testified, two people had shot on his side of the car, hitting him in the upper leg
and shooting Dawson again. Someone said, “We got 443
U.S. 307, 319 (1979). We do not reweigh or re-evaluate the evidence and are required
to afford the State the strongest legitimate view of the proof contained in the record as
well as all reasonable and legitimate inferences which may be drawn therefrom. State
v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978).
Questions concerning the credibility of witnesses, the weight and value to
be given to the evidence, as well as factual issues raised by the evidence are resolved
by the trier of fact, not this Court. Cabbage, 571 S.W.2d 832, 835. A guilty verdict
rendered by the jury and approved by the trial judge accredits the testimony of the
witnesses for the State, and a presumption of guilt replaces the presumption of
innocence. State v. Grace, 493 S.W.2d 474, 476 (Tenn. 1973).
These murders were committed on April 20, 1992. At that time, the form
of first-degree murder known as “felony murder” consisted of “[a] reckless killing of
another committed in the perpetration of, or attempt to perpetrate any first degree
murder, arson, rape, robbery, burglary, theft, kidnapping or aircraft piracy.” T.C.A. § 39-
13-202(a)(2) (1991 Repl). In this case, the murders were committed in the perpetration
of a robbery. Robbery is “the intentional or knowing theft of property from the person of
another by violence or putting the person in fear.” T.C.A. § 39-13-401(a) (1991 Repl).
Furthermore, a person is criminally responsible for the conduct of another when the
person, “[a]cting with intent to promote or assist the commission of the offense, or to
9
benefit in the proceeds or results of the offense, . . . solicits, directs, aids, or attempts to
aid another person to commit the offense.” T.C.A. § 39-11-402(2) (1991 Repl).
In his statement to agent Harbaugh, the defendant indicated that he had
accompanied Shaw and three other men to the scene of the crime and that their intent
had been to confront the people who had “jumped” Shaw’s cousin. Once they arrived in
the general proximity, Shaw gave the defendant a handgun. Nothing in the record
demonstrates that the defendant refused the weapon or was forced to carry it. The
defendant further indicated in his statement that he had willingly walked toward Dawson’s
car and that he subsequently shot three times in the direction of the fleeing occupant.
Thus, since there appears to be no doubt that the defendant was present at the scene
of the crime, the pivotal question becomes whether the proof was sufficient to support a
finding that he killed Dawson and Johnson in the perpetration of a robbery and/or that he
was criminally responsible for the conduct of another in this respect.
The record establishes that Johnson, Dawson and Thomas were robbed
as they sat in Dawson’s car, and that they were all shot as soon as the robbery was
complete. Thomas testified that Carlito Adams and several other individuals had
surrounded the car, “[p]ulled out their pistols, had their pistols aimed at us. Took money
from me; took jewelry from [Johnson]; took jewelry from [Dawson].” Upon being asked
what happened next, he testified, “they opened fire, and they started shooting us.”
Shortly after the shootings, Thomas identified one of the assailants from a photo spread.
He testified at trial that this had been the man who had taken his property and then shot
him. Although Thomas did not make an in-court identification of the defendant, this photo
spread was provided to the jury members and they were able to determine with their own
eyes whether or not the photo was of the defendant. Moreover, agent Harbaugh testified
that the photo appeared to be of the defendant. Thus, the jury could properly have
concluded from Thomas’ testimony alone that the defendant participated in the robbery
10
and shot at the car’s occupants. However, the jury also had before it Mary Jones’
testimony that she had seen the defendant shoot Dawson, that she had been “looking
right at him” and that “[a]s [the defendant] was running down the driveway, after he
finished shooting [Dawson], that’s when I got a real good look in his face.” And Eric
Jones’ testimony corroborated Thomas’ testimony that Thomas, Johnson and Dawson
had all been robbed and then fired upon. Johnson’s mother testified that she had seen
her son wearing a jewelry chain the morning of his murder. When he was found by the
police, immediately after the shooting occurred, there was no jewelry.
Taken in the light most favorable to the State, this proof was more than
sufficient to establish beyond a reasonable doubt that the defendant had participated in
a robbery of Thomas, Johnson and Dawson and that, immediately following the robbery,
he shot and killed Dawson. And although there was no direct proof that the defendant
shot at and killed Johnson, the evidence established that Johnson had been shot while
in the car following the robbery in which the defendant participated. Thus, although one
or more of the other men surrounding the car and robbing its occupants may have
actually fired the bullet that killed Johnson, the defendant remains responsible for
Johnson’s murder:
The Tennessee offense [of felony murder during the perpetration of
a robbery] extends both to the killer and his accomplices. A
defendant who is a willing and active participant in a robbery
becomes accountable for all of the consequences flowing from the
robbery and may be convicted of first-degree murder where a co-
perpetrator of the felony is the actual killer.
State v. Middlebrooks, 840 S.W.2d 317, 336 (Tenn. 1992).
The felony murder statute dealt with in Middlebrooks was slightly different
from the one at issue in this case, providing, “Every murder . . . committed in the
perpetration of, or attempt to perpetrate, any murder in the first degree, arson, rape,
robbery, burglary, larceny, kidnapping, aircraft piracy, or the unlawful throwing, placing
11
or discharging of a destructive device or bomb, is murder in the first degree.” T.C.A.
§ 39-2-202(a) (1982). In 1989, the statute was amended to provide that the killing in the
perpetration of the enumerated felonies be “reckless.” T.C.A. § 39-13-202(a)(2) (1989
Supp). “Reckless” in turn refers to a person who, although aware of a substantial and
unjustifiable risk that a person or persons will be killed as a result of his conduct,
nevertheless consciously disregards that risk and engages in the conduct. See T.C.A.
§ 39-11-106(31) (1991 Repl). This Court has previously held that this addition of the
word “reckless” to the felony murder statute “does not alter the principle that an
accomplice to the underlying felony may also be guilty of felony murder even though the
killing has been committed by a co-felon. The jury need only find that the defendant was
a participant in the perpetration of the underlying felony and that his conduct as to the
killing was 550 S.W.2d 949, 952
(Tenn. 1977). Moreover, the trial court’s determination that a confession was given
knowingly and voluntarily is binding on the appellate courts unless the appellant can show
that the evidence preponderates against the trial court’s ruling. State v. Odom, 928
S.W.2d 18, 23 (Tenn. 1996). In the instant case, the defendant has failed to demonstrate
how the evidence preponderates against the trial court’s ruling.
At the conclusion of the testimony at the suppression hearing, the trial court
stated the following:
The defendant says the person that handcuffed him gave him his
rights on the scene -- he didn’t read them from a card, but he said
them to him. He said he understood his rights. He doesn’t
remember all of them, but he knows that he was advised, 782 S.W.2d 490,
498 (Tenn. Crim. App. 1989) (citations omitted) (emphasis added). And the trial court in
this case charged the jury accordingly, stating, inter alia,
The law makes no nice or refined distinction as to the manner or
method of a flight; it may be open, or it may be a hurried or
concealed departure, or it may be a concealment within the
jurisdiction; however, it takes both the leaving the scene of the
difficulty and a subsequent hiding out, evasion, or concealment in the
community, or a leaving of the community for parts unknown, to
constitute flight.
(emphasis added). Here, the defendant both ran from the crime scene and subsequently
left his home in West Memphis for Chicago. Such evidence supported a jury instruction
on flight, and the trial court did not err in so instructing the jury. This issue is without
merit.3
IV. ATTEMPTED FELONY MURDER
In addition to being convicted of two counts of felony murder, the defendant
was convicted of two counts of attempted felony murder. The State correctly concedes
that attempted felony murder does not constitute a crime in Tennessee. State v.
Kimbrough, 924 S.W.2d 888, 892 (Tenn. 1996). Accordingly, we reverse and dismiss
those two convictions. However, we are left with the issue of whether the defendant may
now be retried on the charges of attempted premeditated murder. The precise issue is
whether a defendant may be retried under an alternative count on which the jury made
no finding where the count of which the defendant was convicted fails to state an offense.
We find this issue to be a matter of first impression in Tennessee.
3
Our ruling that the trial court’s instruction to the jury on flight was not error renders moot the
defendant’s contention that the “error” was not harmless.
15
A defendant may be retried for an offense when his conviction is set aside
because of an error in the proceedings rather than because the State failed in its effort
to prove him guilty. Burks v. United States, 437 U.S. 1 (1978); State v. Hutcherson, 790
S.W.2d 532, 535 (Tenn. 1990). For instance, retrial is appropriate where the conviction
is reversed due to the “incorrect receipt or rejection of evidence, incorrect instructions,
or prosecutorial misconduct.” Burks v. United States, 437 U.S. 1, 15 (1978). Similarly,
a defendant may be reindicted and tried on other offenses where his conviction is
reversed because the underlying statute is later deemed unconstitutional. State v. Hale,
840 S.W.2d 307, 308 (Tenn. 1992). In the instant case, the defendant’s convictions for
attempted felony murder are being reversed because our Supreme Court has ruled that
no such offense exists. That is, due to a fundamental error in the proceedings, the
defendant was tried for a crime which is impossible to commit. Obviously, he cannot be
retried for attempted felony murder. We must determine, then, whether he can be retried
for attempted premeditated first-degree murder. We hold that Burns has been neither
convicted nor acquitted of these crimes and principles of double jeopardy do not
therefore prohibit his retrial.
Burns was indicted for both attempted felony murder and attempted
premeditated first-degree murder, and both counts were sent to the jury. However, the
trial court instructed the jury in this case to first consider Count 1 of the indictments which
charged the offense of attempted felony murder. The jury was instructed that if they
found the defendant guilty of attempted felony murder, they would so report. The jury
was further instructed that if they found the defendant not guilty of that offense, they
would then proceed to inquire as to his guilt of attempted premeditated first-degree
murder as charged in Count 2 of the indictments. In other words, the jury was not to
consider attempted premeditated first-degree murder if they found the defendant guilty
of attempted felony murder.
16
Typically, when a jury is given a multi-count charge and returns a special
verdict convicting the defendant of one of the charges but which is silent as to the other
charges, the defendant is deemed acquitted of the other charges. See, e.g., Conner v.
State, 531 S.W.2d 119,126 (Tenn. Crim. App. 1975). The State is then prohibited from
retrying the defendant on the acquitted charges even if the conviction is later reversed.
Id. As this Court held in State v. Arnold, however, “we are of the opinion that this rule is
not applicable to the situation involved in the present case.” 637 S.W.2d 891, 895 (Tenn.
Crim. App. 1982).
In Arnold, each of the defendants had been charged with a conspiracy to
engage in the protracted and repeated sales of controlled substances, with being a
habitual drug offender, and with specific drug transactions as separate and additional
offenses. The controlling statute (and the jury instructions) limited the jury to finding the
defendants guilty of either being habitual drug offenders or of committing the specific
drug deals, but not both. The jury found each of the defendants guilty of being a habitual
drug offender. On appeal, this Court found the evidence to have been insufficient to
support the habitual drug offender convictions. Nevertheless, the case was remanded
for a new trial on the specific drug transactions.
In so holding, this Court acknowledged the general rule that “a special
verdict upon one count of an indictment operates as an acquittal upon the other counts
to which the jury did not respond.” Arnold, 637 S.W.2d at 895. In distinguishing the case
before it, this Court reasoned that
[i]mplicit in the jury’s verdict finding the appellants guilty
under the first count of being habitual drug offenders is a
finding of their guilt of the transactions separately charged in
the fourth and fifth counts; yet, because of the restrictions in
the statute, the jury, once it found the appellants guilty under
the first count, was precluded from reporting a verdict of guilt
on the separate offenses charged in the fourth and fifth
counts.
17
Therefore, we conclude that because of the restrictive
language contained in the habitual drug offender statute, the
jury’s failure to report a verdict on the fourth and fifth counts
did not operate as a verdict of acquittal on those charges,
and a remand for trial on those counts would be in order.
Arnold, 637 S.W.2d at 895. Although we are not dealing with a statutory restriction in the
case sub judice, we find the trial court’s instructions to the jury to have operated to the
same effect. Once the jury found Burns guilty of attempted felony murder, its instructions
were to move on and make no report on the charges of attempted premeditated murder
and its lesser offenses. Yet, implicit in the convictions for attempted felony murder was
a finding that the defendant had indeed attempted to kill two people. While we cannot
know whether the jury would have convicted the defendant of attempted premeditated
murder or one of its lesser offenses had it been given the opportunity to consider those
charges, the evidence was certainly sufficient for it to have done so.
The United States Supreme Court has also spoken on implied acquittals,
finding them to bar retrial under the federal Double Jeopardy Clause4 when the jury has
been given “a full opportunity to return a verdict” on a charge and instead found the
defendant guilty of a lesser charge. Price v. Georgia, 398 U.S. 323, 329 (1970)(footnote
omitted). See also Green v. United States, 355 U.S. 184 (1957). That is, “[o]nly where
the jury is given the full opportunity to return a verdict either on the greater or,
alternatively, on the lesser included offense does the doctrine of implied acquittal obtain.”
United States v. Reed, 617 F. Supp. 792, 800 (D.C.Md. 1985) (emphasis in original).
While we realize that attempted premeditated murder is not a lesser offense of attempted
felony murder, we are convinced that the same analysis is appropriate. See Schiro v.
Farley, 510 U.S. 222, __, 114 S. Ct. 783, 792 (1994) (“The failure to return a verdict does
not have collateral estoppel effect . . . unless the record establishes that the issue was
actually and necessarily decided in the defendant’s favor.”) Here, the jury was not given
the full opportunity to return a verdict either on attempted felony murder or, alternatively,
4
U.S. Const. amend. V.
18
on attempted premeditated murder and its lesser offenses. Because the jury was not
given that opportunity, its verdict did not necessarily resolve in Burns’ favor the issue of
his guilt of the alternative crimes and the doctrine of implied acquittal should not apply. 5
Finally, our Supreme Court has made it clear that a defendant may be
retried for lesser offenses following reversal of his or her conviction for the greater
offense. State v. Maupin, 859 S.W.2d 313, 317 (Tenn. 1993). In Maupin, the defendant
had been charged in a single count indictment with aiding and abetting first-degree
murder of a child resulting from repeated child abuse. The jury was charged with the
indicted offense as well as with the lesser offenses of aiding and abetting second-degree
murder, aiding and abetting aggravated child abuse and aiding and abetting child abuse.
nThe jury convicted the defendant of the aiding and abetting first-degree murder charge.
However, the statute creating that grade of first-degree murder, T.C.A. § 39-2-
202(a)(2)(Supp. 1988), was later found unconstitutional. State v. Hale, 840 S.W.2d 307(Tenn. 1992). Accordingly, our Supreme Court reversed Maupin’s conviction but ruled
that she could be retried on the lesser offenses. In so holding, the Court stated:
Maupin was not acquitted of any of the lesser offenses as the
jury was not required to pass judgment upon them.
...
5
Cf. Saylor v. Cornelius, 845 F.2d 1401 (6th Cir. 1988). In Saylor, the defendant had been
indicted on one count of murder, which count encompassed m urder as a principal, as an accomplice,
and by conspiracy. The trial court instructed the jury only on the theory of the defendant’s involvement
as a conspirator. The prosecution did not object to the instructions nor request a charge on accomplice
liability. Th e jury convicted th e de fendan t and the conviction was late r reve rsed for insufficient e viden ce.
Although there was “con siderable evidence ” sup porting the defe nda nt’s role as a n ac com plice, the 6th
Circuit Court of Appea ls held that double jeopardy principles barred retrial on that ground. The C ourt
stated, “Once the jury returned its verdict, the failure to instruct on the acco m plice liability theory
term inated Saylor’s je opardy . . . . T o deny this pro positio n would m ean that th e prosecution could
proceed on several theories of liability throughout a trial, and, simply by withholding instructions on any
one of the m , rese rve that theory for re trial at a later date.” 845 F.2d at 1404. T he C ourt late r limited its
holding in Saylor, sta ting that its s ignificance was “lim ited by the unusual situa tion we were addressing in
that case: because of prosecutorial absent-mindedness, Mr. Saylor’s trial ended without an acquittal or
a conviction on a charg e that had been properly presented in an indictment and em phasized at trial.”
U.S. v. D avis, 873 F.2d 900, 906 (6th Cir. 1989). This case is clearly distinguishable from Saylor,
although both cases involve unfortunate jury instructions. In Saylor, the trial court’s action was the
functional equivalent of a dismissal of the accomplice theory, in which the prosecution acquiesced. The
defendant, on the other hand, had objected to proceeding on the conspiracy theory. In the present case,
the trial court did submit the alternative count to the jury but, in effect, relieved it of its duty to consider
that count upon its finding Burns guilty of attempted felony murder. The prosecution was in no way
trying to “reserve a theory” for later use in the event the jury acquitted the defendant of attempted felony
m urde r.
19
[D]ouble jeopardy should not bar a retrial when the trier of
fact does not pass upon lesser offenses one way or the
other. There having been no factual resolution of Maupin’s
guilt or innocence on the lesser offenses, she can be tried for
those offenses without violating double jeopardy.
...
We find no double jeopardy impediment in allowing Maupin,
like Hale, to be tried for lesser offenses simply because she
was convicted of the greater offense under a flawed statute.
859 S.W.2d at 318-19.
Similarly, in the case at bar, the jury was not required to pass on the
alternative counts of attempted premeditated murder and its lesser offenses and there
has therefore been no factual resolution of the defendant’s guilt or innocence of those
crimes. Indeed, the only factual resolution made by the jury on the attempted murder
counts was that the defendant did attempt to murder two people. Analogously to Maupin,
the defendant in this case was convicted of an offense under a flawed legal interpretation
of the attempt and felony murder statutes. The jury was not given an opportunity to
convict Burns of the cognizable crimes of attempted premeditated murder or its lesser
offenses. Double jeopardy should not, therefore, bar his retrial for these offenses.
Accordingly we hold that this matter is to be remanded for the defendant to be retried on
two counts of attempted premeditated murder.
20
V. SPECTATOR DISPLAY
The defendant also contends that he should be given a new trial because
of an “outburst” by members of the victims’ families during testimony. He argues that this
“outburst” was “prejudicial and designed to gain the jurors’ sympathy.” However, upon
his lawyer’s objection, the trial court found as follows:
What you have here is two individuals involved -- the mothers of the
deceased two individuals. It was not a great outburst. It was
something the court would characterize more as a sob, and that was
closely contiguous with testimony that the deceased, [Johnson],
somehow got out of the car; he stopped to see if traffic was coming --
car was coming; he got across the street; he was holding his hands
out. The witness demonstrated saying “Help me, help me,” then he
stumbled and fell. At that point, I believe one of the ladies, who was
a parent of that deceased, and one other who was the parent of the
other deceased, got up and left the courtroom. They didn’t slam the
door or anything like that. I wouldn’t say there was a great hubbub
or anything like that. One of them sobbed. I would not say it was a
particularly loud one. It was noticeable, but that’s about it.
....
I don’t think it’s unexpected by any of the jurors that someone would
not have some emotional reaction to a description of their child.
...
Under the circumstances, as they exist right now, the court does not
think it’s something that’s going on, on an on-going basis. It does not
appear to be any calculated display of histrionics or anything like that
for the purpose of influencing the jury or soliciting or eliciting their
passions.
....
It was not anything that was done overtly. It was a sob, and the
parties immediately removed themselves without undue display when
their emotions got out of control. Now, I don’t believe there are going
to be any other witnesses that would testify to being eyewitnesses to
these events. So, I don’t think the problem is going to rise again.
...
I don’t think that the behavior exhibited by the two ladies in question
is outrageous or anything like that or particularly offensive. I don’t
think it’s likely to happen again, so I don’t think we will have any
further problem. But in any event, looking at the jury’s reaction -- I
always do that -- it did not appear that they were unduly disturbed by
the thing.
21
We first note that defense counsel did not move for a mistrial at the time
this incident occurred. Rather, he objected and requested that the mothers remove
themselves from the courtroom if the testimony was “going to be too painful for them to
sit [there] without an outburst.” Defendant then raised for the first time in his motion for
new trial the argument, again presented here, that the trial court should have sua sponte
granted a mistrial.
We disagree. As this Court has stated earlier,
The entry of a mistrial is appropriate when the trial cannot continue,
or, if the trial does continue, a miscarriage of justice will occur.
Whether an occurrence during the course of a trial warrants the entry
of a mistrial is a matter which addresses itself to the sound discretion
of the trial court; and this Court will not interfere with the exercise of
this discretion absent clear abuse appearing on the face of the
record.
State v. McPherson, 882 S.W.2d 365, 370 (Tenn. Crim. App. 1994). In McPherson, the
defendant was on trial for aggravated rape. In recounting the crime on the witness stand,
the victim became upset. The court called a recess, but before the jury had left the room,
the victim-witness coordinator for the district attorney’s office came into the courtroom
and began hugging the victim. The defendant requested a mistrial, which the trial court
denied on the grounds that it was “ 786 S.W.2d 642, 644 (Tenn. 1990).
22
In the instant case, although no motion for mistrial was made, it is clear
from the court’s remarks in response to defense counsel’s objection that it had
determined the defendant suffered no prejudice from the victims’ mothers’ conduct.
Defense counsel declined to request a curative instruction and appeared satisfied with
the trial court’s response to his objection. No abuse of discretion has been demonstrated
in the trial court’s refusal to declare a mistrial sua sponte. This issue is without merit.
VI. ADMISSION OF PHOTOGRAPH
In his next issue, the defendant contends that the trial court erred by
admitting into evidence a photograph of the driver’s seat in which Dawson had been
sitting. The photograph depicts bloodstains on the seat as well as a small amount of
unidentified material which the defendant describes as “what could be considered guts.”
He argues that the photograph was not probative of any issue and that it was prejudicial
and served merely to “inflame the jury.” The State responds that the photograph was
offered in order to prove that Dawson “did not have a weapon in the front seat, and to
show the force from the close range shots that threw [him] over to the armrest, where he
bled considerably.” At trial and upon the defendant’s objection to the introduction of this
photograph, the trial court found,
There is some smearing of blood. I don’t believe -- well, in the court’s
opinion, looking at that, it’s not unduly prejudicial. It doesn’t elicit
any particular revulsion in light of what’s commonly on television for
adult viewing these days. . . . It’s not particularly bloody. Now, I don’t
think any adults or any ordinary jury is going to get particularly
revolted or so distressed by looking at some moderate to small
amount of dried blood on a front seat.
Under our rules of evidence, the test for determining whether evidence is
“relevant” is easy to pass: “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence” is relevant. Tenn. R. Evid. 401. As the
State points out in its brief, the defendant had been charged with premeditated first-
degree murder. In order to prove this offense, the State had to prove that the defendant
23
killed Dawson intentionally, deliberately and with premeditation. See T.C.A.
§ 39-13-202(a)(1) (1989 Supp). The amount of blood depicted in the photograph,
together with the implied position of the victim’s body, satisfies the definition of relevant
evidence insofar as tending to prove that the defendant shot Dawson intentionally and/or
deliberately. That is, the photograph was probative as to the effect of the gunshots upon
Dawson’s body and, therefore, as to the issue of whether the defendant shot him
accidentally or intentionally and/or deliberately. The photograph was also probative as
to the State’s theory of how the victim was killed. Therefore, we disagree with the
defendant that the photograph was not relevant.
While relevant, a photograph may be excluded “if its probative value is
substantially outweighed by the danger of unfair prejudice.” Tenn. R. Evid. 403.
However, this balancing test is committed to the sound discretion of the trial court, and
its decision will not be disturbed on appeal absent a showing of clear abuse of discretion.
State v. Stephenson, 878 S.W.2d 530, 542 (Tenn. 1994). No such showing has been
made here. This issue is accordingly without merit.6
VII. TRIAL COURT’S RESPONSE TO JUROR QUESTIONS
In his next issue, the defendant asserts that the trial court erred in its
response to the jury when the jury asked certain questions during its deliberations in the
penalty phase of the trial. Those questions propounded by the jury to the trial court were
as follows:
(1) How many years for life?
(2) What does 872
S.W.2d 922, 930 (Tenn. Crim. App. 1993). The trial court in this case took the questions
from the jury after recalling counsel, the defendant, the court reporter and the jury back
into open court in order to take the matter up on the record. Thus, defense counsel had
every opportunity to object at the time the trial court gave its response. Defense counsel
chose not to do so. The defendant will not now be heard to complain. See T.R.A.P.
36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error or who failed to take whatever action was reasonably available
to prevent or nullify the harmful effect of an error.”)
Even if the defendant had not waived this “error,” however, this issue has
no merit. As the defendant acknowledges, the trial court followed the proper method of
fielding the jury’s questions. See State v. Mays, 677 S.W.2d 476, 479 (Tenn. Crim. App.
25
1984) (“The proper method of fielding questions propounded by the jury during
deliberations is to recall the jury, counsel, the defendant(s), and the court reporter back
into open court and to take the matter up on the record.”) Additionally, contrary to the
defendant’s contention, the trial court responded properly to the jury’s inquiry. See, e.g.,
State v. Johnson, 698 S.W.2d 631 (Tenn. 1985). In Johnson, a capital case, our
Supreme Court addressed a situation in which one of the jurors had asked questions
regarding parole during voir dire. The Court stated, “the preferable response to a juror’s
inquiry about parole is to instruct the jury to limit their deliberations to the instructions
given them at the close of the evidence.” Id. at 633. That is exactly what the trial court
did in this case. In State v. Smith, 857 S.W.2d 1 (Tenn. 1993), another capital case, our
Supreme Court again addressed the proper response to jury inquiries about sentencing
and parole. The trial court had refused to supplement its original instructions. The
defendant argued that information about parole eligibility might operate as mitigating
evidence and the trial court’s refusal to give additional instructions “somehow create[d]
a non-statutory aggravating factor of future dangerousness.” 857 S.W.2d at 11. The
Court rejected this argument, opining “that to provide a jury with the sort of information
requested by defendant could result in sentences of death based on sheer speculation
and on factors other than those enumerated in T.C.A. § 39-2-203 and sanctioned under
either [the Tennessee or United States] Constitution.” Id. The trial court did not err in its
response to the jury’s questions in this case, and this issue is therefore without merit.
VIII. SUFFICIENCY OF AGGRAVATOR EVIDENCE
The jury sentenced the defendant to death for the felony murder of Damond
Dawson, finding as an aggravating circumstance that he had knowingly created a great
risk of death to two or more persons other than the victim murdered during the act of
murder. See T.C.A. § 39-13-204(i)(3) (1991 Repl). The defendant contends that the
evidence was insufficient to support this aggravating circumstance, alleging that “no facts
were introduced during the trial to prove that [he] knowingly created a risk of death to two
26
or more persons.” However, the proof at trial established that the defendant shot
Damond Dawson repeatedly, from close range, while Dawson sat in a stationary car with
two other people. The risk to these two other people is more than obvious.7 The
defendant’s contention that he did not “knowingly” create this risk is ludicrous. A person
acts “knowingly” with respect to his conduct when he is aware of the nature of his
conduct. T.C.A. § 39-11-302(b)(1991 Repl). The proof at trial established that the
defendant pointed a loaded pistol into a car in which three people sat, fired the pistol into
the car several times, walked away and then walked back and shot some more.8 Clearly,
the defendant was “aware” of the “nature of his conduct.” This issue is wholly without
merit.9
The defendant also argues that the State improperly relied on the attempted
felony murder convictions during its closing argument during the penalty phase of the
trial. Specifically, he contends that, “In support of this aggravating circumstance, the
State argued that the two (2) companion convictions for criminal attempt felony murder
established this aggravating circumstance.” The defendant then cites a portion of the
prosecutor’s closing argument referencing the attempted murder verdicts. However, the
record reveals the entirety of the prosecutor’s argument in support of this aggravating
7
The defendant was also convicted of the felony murder of one of these two other people (“the
Johnson felony murder”). However, because there is no duplication between the elements of felony
m urder and the ag gravator for putting two or mo re other people at great risk of death du ring the mu rder,
the John son felony murde r con viction d oes not create a bar to us ing the facts on w hich it is base d to
prove an aggravating circumstance in support of the death penalty for the Dawson felony murder. That
is, no Middlebrooks-type error is thereb y com m itted. Cf. State v. Middlebrooks, 840 S.W .2d 317, 346
(Tenn . 1992) (when defe nda nt is co nvicte d of felony murde r, the fe lony m urde r agg rava tor, T.C.A .
§ 39 -13-204 (i)(7), m ay not b e us ed a s an agg rava ting circ um stan ce in s upp ort of th e de ath pena lty
because, due to the broad definition of felony murder and the duplicating language of the felony murder
aggravating circumstance, there is no narrowing of the class of death-eligible defendants as required by
the federal and Tennessee constitutions). Nor is a double jeopardy problem thereby created: in using
the same facts (together with the presence of the third occupant in the car) to establish both the
Johnson felony murder conviction and the aggravating circumstance for the Dawson felony murder, the
defend ant is n ot being pu nished tw ice for the s am e crim e.
8
The defendant’s own statement also indicates that he shot at Blackman while Eric Jones and
two other boys were in the line of fire. However, because we deem the aggravator to have been
suffic iently proven by the defendant’s shots into the car, we decline to address the issue of w hethe r this
prior conduct by the defenda nt occurred “during the ac t of mu rder” as required by the aggravator.
9
W e also note that the other assailants surrounding the car were put at great risk from the
defendant’s bullets.
27
factor on initial closing argument as follows:
In this particular case, the state has alleged that there are two
aggravating factors, and I’m going to talk about them briefly. Both of
them have been proven, I submit, by proof that is put on during the
guilt phase of the trial; and the judge will instruct you that you may
use what proof has been put on in the trial to consider at this phase
of the trial -- in sentencing -- both as to aggravating factors and as to
any mitigating factors also.
....
Now, the two aggravating factors that we intend to go into -- or that
the state submits ha[ve] been proven to you is, first of all, that the
defendant caused risk of great bodily harm to two or more other
persons other than the intended victims of this crime.
Now, what we’re talking about is when Mr. Blackman was running
from the car, Eric Jones was in the way of the shooting. Eric Jones
confronted Tommie Blackman as he ran from the car and was caught
in this gunfire. Now, fortunately he wasn’t hit.
But also there were three other young men playing basketball on the
side of the yard. All three of those young men were also caught in
the gunfire of the individual shooting at Tommie Blackman. That is
risk of death or great bodily injury to persons other than the intended
victims in this case.
Now, we’ve proven there were four persons -- in addition to Tommie
Blackman, there were four persons10 that were in the line of fire.
That is one of the aggravating factors in this case, ladies and
gentlemen.
And then on final closing argument:
[As to the] risk of death to two or more people. How about -- how
about Eric Thomas who caught three rounds in his body fired not by
one of [the defendant’s] co-defendants but by that man right there.
He shot him and shot him and shot him. That’s a pretty good risk of
death. How about Tommie Blackman who’s running? There’s a risk
of death to two people right there, not even counting the children
playing basketball. We haven’t proven a risk of death to two or more
people? My God, you’ve returned a verdict that he attempted to
murder two other people. It is established, beyond a reasonable
doubt, and already been found as a verdict that there was a risk of
death to two or more people.
It is this very latter portion of the prosecutor’s closing argument about which the
defendant now complains.
10
In fac t, Eric Jone s tes tified that he had b een playing b ask etba ll with two other b oys, no t three.
Thus, in addition to Blackm an, there were three other persons in the line of fire, not four as argued by
the State. This error in reciting the facts during argument was harmless.
28
We first note that the defendant raised no objection to the prosecution’s
argument at trial. Accordingly, any argument of prosecutorial misconduct has been
waived. State v. Killebrew, 760 S.W.2d 228, 231 n.11 (Tenn. Crim. App. 1988); T.R.A.P.
36(a). Even if the defendant’s objection had not been waived, however, the prosecutor’s
argument, when taken in its entirety, was not improper. The prosecutor told the jury,
correctly, that it could rely on evidence which had been admitted during the guilt phase
of the trial. He then went on to argue a couple of different ways in which he thought the
proof supported the aggravating factor. He did not emphasize one over the other. He
did not tell the jury that its verdicts of attempted felony murder meant that the aggravating
factor had already been established or that it did not have to follow the trial court’s
instructions about its duty to determine the existence of one or more aggravating factors.
And the court did not instruct the jury that its attempted murder verdicts constituted or
were the equivalent of a finding of the aggravating factor.
Moreover, the jury did not have to accept the prosecutor’s interpretations
of the evidence: it was free to interpret the evidence in any way it chose within the context
of the court’s instructions on the aggravating factor. Indeed, the State did not make the
easiest argument in support of this factor: that by repeatedly firing a pistol into a car in
which three people sit, the shooter clearly creates a risk of death to every occupant of the
car and possibly those outside in the immediate area. This argument is without merit.
IX. PROPRIETY OF DEATH SENTENCE
The defendant next contends that “his role was minor in this case, and as
such, requires reversal of the death sentence.” We first note that the death penalty in this
case was imposed for the defendant’s felony murder of Damond Dawson. We also note,
as set forth above, that the evidence was sufficient to support the jury’s verdict that the
defendant murdered Dawson in the perpetration of a robbery. The defendant’s role in
this crime, as determined by the jury, was hardly “minor.”
29
The defendant argues that, since he was under the impression he was
joining the other assailants to participate in a fight, and that he had no knowledge of the
robbery or intent to commit it, the sentence imposed is disproportionate to his culpability,
relying on Enmund v. Florida, 458 U.S. 782 (1982), and State v. Branam, 855 S.W.2d
563 (Tenn. 1993). In Branam, our Supreme Court outlined the controlling law addressing
the defendant’s claim, construing Enmund in the process:
In Enmund v. Florida, . . . the United States Supreme Court held that
death is a disproportionate penalty and, therefore, constitutes cruel
and unusual punishment under the Eighth Amendment, where it is
imposed against a defendant 928 S.W.2d 18, 28 (Tenn. 1996) (“This statute expressly exempts evidence
adduced in capital sentencing proceedings from the usual evidentiary rules.”)
In 1979, our Supreme Court construed identical language in the then-
current capital sentencing provisions of our Code in Cozzolino v. State, 584 S.W.2d 765(Tenn. 1979). It held:
On its face section (c) would seem to permit the introduction of
evidence 428 U.S. 153, 188, 96 Sup. Ct. 2909, 2932, 49 L. Ed. 2d 859(1979), i.e., on the basis of factors other than those deemed by the
legislature to be proper predicates for the sentencing determination.
We think that a better interpretation of TCA § 39-2404(c), and one
more in keeping with both the sense of the entire statute and the
mandate of the United States Supreme Court, see, e.g., Gregg v.
Georgia, supra; Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57
L. Ed. 2d 973 (1978), is that evidence is relevant to the punishment,
and thus admissible, only if it is relevant to an aggravating
circumstance, or to a mitigating factor raised by the defendant.
Cozzolino, 584 S.W.2d at 767-68 (emphasis added). We note, however, that the
evidence challenged as irrelevant in Cozzolino was proof that the defendant had
committed subsequent crimes. Victim impact evidence was not at issue.
Our Supreme Court has neither overruled nor modified its decision in
Cozzolino. It has, however, since indicated that, even where “technically irrelevant,”
victim impact considerations may be relevant to a defendant’s “personal responsibility
and moral guilt.” State v. Payne, 791 S.W.2d 10, 18 and 19 (Tenn. 1990), aff’d 501 U.S.
808 (1991). In Payne, the Court considered the brutal stabbing murders of a young
mother and her daughter and the simultaneous stabbing of the woman’s young son.
Admitted into evidence was the grandmother’s testimony that the young son “cries for his
mom. He doesn’t seem to understand why she doesn’t come home. And he cries for his
sister Lacie. He come to me many times during the week and asks me, Grandmama, do
you miss my Lacie. And I tell yes. He says, I’m worried bout my Lacie.” On appeal, the
Court was not faced with the argument that this statement was not properly admissible
under Tennessee’s death penalty statute, but rather the defendant argued that the
testimony violated his constitutional rights under Booth v. Maryland, 482 U.S. 496 (1987).
The Court held that, “[w]hile technically irrelevant, that statement did not create a
constitutionally unacceptable risk of an arbitrary imposition of the death penalty, and was
harmless beyond a reasonable doubt.” Payne, 791 S.W.2d at 18. The Court made no
reference to either Cozzolino or the statutory language construed therein.
33
Also at issue in Payne was the prosecutor’s use of victim impact concerns
in his argument to the jury. In response to the defendant’s assertion that the State’s
closing argument violated his Eighth Amendment rights, our Supreme Court stated:
We are of the opinion that the prosecutor’s argument is relevant to
this defendant’s personal responsibility and moral guilt. When a
person deliberately picks a butcher knife out of a kitchen drawer and
proceeds to stab to death a twenty-eight year old mother, her two
and one-half year old daughter and her three and one-half year old
son, in the same room, the physical and mental condition of the boy
he left for dead is surely relevant in determining his
501 U.S. 808, 827 (1991).
It is difficult to reconcile our Supreme Court’s decisions in Cozzolino and
Payne. While the Payne Court was not presented with the issue of the admissibility of
34
the victim impact evidence under the death penalty statute, it certainly had the power to
comment upon the issue had it chosen to do so. See T.R.A.P. 13(b). See also State v.
Bigbee, 885 S.W.2d 797, 808 (Tenn. 1994) (victim impact evidence challenged on
constitutional grounds found harmless; no reference to the death penalty statute or
Cozzolino). Moreover, when again presented with the issue of prosecutorial argument
focusing on victim impact in State v. Shepherd, our Supreme Court held “Such victim-
impact argument is not improper,” citing Payne: although it went on to caution the State
“to utilize such arguments advisedly.” 902 S.W.2d 895, 907-08 (Tenn. 1995). It appears,
then, that the Court is not anxious to find victim impact evidence inadmissible; and, even
when it is “technically” so, the Court appears prone to find its admission harmless.
In the present case, the State called the mothers of the two murdered
victims to testify during the sentencing phase of the trial. Dawson’s mother testified that
the shootings had had a negative effect on the neighborhood, making her neighbors
“scared to look out the door;” that she had had to buy another house because she
couldn’t continue to live in the one in which her son had lived; that everything had
changed and her life would never be the same; that she is now divorced; and that she
“sure would like to know what it feels like to feel happy again -- just to feel happy.”
Johnson’s mother testified that, since her son’s death, “It’s been hard to let go. I know I
can’t see Tracey anymore. A day don’t pass I don’t shed a tear.” She also testified about
the effects of her son’s death on her other children, her father and Tracey’s young
daughter.
In light of Cozzolino, we find ourselves constrained to hold that this
evidence was “technically irrelevant.” However, following our Supreme Court’s lead in
Payne, we also find that its admission did not create a constitutionally unacceptable risk
of an arbitrary imposition of the death penalty and was harmless beyond a reasonable
doubt. The jury found as the sole aggravator that the defendant had knowingly created
35
a great risk of death to two or more persons other than the murder victim during the act
of murder. There was more than sufficient proof on this point to support the jury’s finding.
Moreover, the trial judge correctly instructed the jury as to the aggravating factors at
issue, telling them that he had
read to you the aggravating circumstances which the law requires
you to consider if you find, beyond a reasonable doubt, that the
evidence was established. You should not take into account any
other facts or circumstances as the basis for deciding whether the
death penalty would be appropriate punishment in this case, except
as such fact[s] and circumstances may establish mitigating
circumstances or factors.
(emphasis added). Thus, the jury was instructed to not consider the victim impact
evidence in deciding whether to impose the death penalty. A jury is presumed to follow
its instructions. See, e.g., State v. Blackmon, 701 S.W.2d 228, 233 (Tenn. Crim. App.
1985).
With respect to the defendant’s arguments that the admission of the
evidence was unconstitutional, the discussion above demonstrates that there is no per
se Eighth Amendment bar to the admissibility of victim impact evidence. And because
we find the admission of the evidence in this case to have been harmless error, we also
find that the evidence did not render the defendant’s trial fundamentally unfair in violation
of his due process rights under the Fourteenth Amendment. Cf. Payne v. Tennessee,
501 U.S. 808, 831 (1991). (If such victim impact evidence so infects the sentencing
hearing as to render it fundamentally unfair, the defendant may take appropriate relief
under the due process clause.) (O’Connor, J., concurring). Finally, the defendant has
cited us to no authority holding that Article I, Sections 8 and 16 of the Tennessee
Constitution afford him any greater protection. Accordingly, this issue is without merit.
XI. CONSTITUTIONALITY OF DEATH PENALTY
In his last contention, the defendant maintains that Tennessee’s death
penalty statutes are unconstitutional. He acknowledges that his challenges have been
36
rejected by our Supreme Court, but reserves the issues for later review. This Court is,
of course, bound by our Supreme Court’s prior holdings that Tennessee’s death penalty
statutes are constitutional. Accordingly, we hold without further discussion these issues
to be meritless. See, e.g., State v. Smith, 893 S.W.2d 908 (Tenn. 1994), cert. denied,
__ U.S. __ (1995); State v. Brimmer, 876 S.W.2d 75 (Tenn. 1994), cert. denied, __ U.S.
__ (1994); State v. Cazes, 875 S.W.2d 253 (Tenn. 1994), cert. denied, __ U.S. __
(1995); State v. Smith, 857 S.W.2d 1 (Tenn. 1993), cert. denied, 510 U.S. 996 (1993);
State v. Black, 815 S.W.2d 166 (Tenn. 1991); State v. Boyd, 797 S.W.2d 589 (Tenn.
1990), cert. denied, 498 U.S. 1074 (1991); State v. Teel, 793 S.W.2d 236 (Tenn. 1990),
cert. denied, 498 U.S. 1007 (1990); State v. Thompson, 768 S.W.2d 239 (Tenn. 1989),
cert. denied, 497 U.S. 1031 (1990).
The defendant’s convictions for attempted felony murder are reversed and
dismissed and this cause is remanded for further proceedings on the two counts of
attempted premeditated murder. The judgment below is otherwise affirmed.
______________________________
JOHN H. PEAY, Judge
CONCUR:
______________________________
JOE B. JONES, Judge
______________________________
JOE G. RILEY, Judge
37